United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT.
before the Court is the Motion for Summary Judgment, (ECF No.
67), filed by Defendant Clark County (the
“County”). Plaintiff Nevada Restaurant Services,
Inc. (“Plaintiff”) filed a Response, (ECF No.
82), and the County filed a Reply, (ECF No 86).
pending before the Court is the Motion for Partial Summary
Judgment, (ECF No. 74), filed by Plaintiff. The County filed
a Response, (ECF No. 83), and Plaintiff filed a Reply, (ECF
No. 88). For the following reasons, the Court
GRANTS the County's Motion for Summary
Judgment and DENIES Plaintiff's Motion
for Partial Summary Judgment.
owns gaming and drinking establishments in Clark County,
Nevada, that operate as taverns under “Class A”
gaming licenses. (Am. Compl. ¶ 13, ECF No. 60). These
Class A licenses “permit[ ] the operation of a total of
fifteen or fewer slot machines incidental to the
primary business at the establishment wherein the slot
machines are to be located.” Clark County Code (the
“Code”) § 8.04.040(B)(3) (emphasis added);
(see Depo. Of Allison Gigante 22:21-24:3, Ex. A to
Am. Compl., ECF No. 63).
a proliferation of businesses operating under a Class A
license, the Clark County Board of County Commissioners (the
“Board”) passed an amendment to its tavern laws
(the “2011 Ordinance”) effective April 9, 2011.
(Bill No. L-3-1-1 l-3(A)/Ordinance No. L-252-11, Ex. I to
County's Mot. for Summ. J. (“MSJ”), ECF No.
67). The 2011 Ordinance required that taverns operating under
Class A limited gaming licenses have a bar and at least eight
slot machines “embedded” in the bar. Code §
8.20.020.385 (Apr. 19, 2011). Taverns licensed “at the
same location” prior to December 22, 1990, were
exempted from the new requirement. Id.
some problems with enforcement of the 2011 Ordinance, the
Board amended the Code by passing Ordinance L-256-14 (the
“2014 Ordinance”) on December 3, 2014.
See Code § 8.20.020.385. The 2014 Ordinance
requires taverns to maintain bars with a minimum height of
forty inches and to operate a minimum number of slot machines
as “bartop machines.” Code §
8.20.020.385(c)(1). Alternatively, a tavern may comply if
less than fifty-percent of its revenue is derived from slot
machines. Code § 8.20.020.385(c)(2). A tavern need not
comply with these provisions if it either operates seven or
fewer slot machines or qualifies as a grandfathered tavern.
Code § 8.20.020.385(d)-(e). According to the Code, a
“grandfathered tavern” is:
(i) A tavern licensed for fifteen or fewer slot machines, the
application for which was pending or approved prior to
[December 8, 2006]; or
(ii) Any tavern which, as of December 2, 2014, operated more
than fifty percent of the slot machines on its premises as
bartop machines, regardless of the height of such bartop
machines located in a bar . . . .
Code § 8.20.020.385(a)(i)-(ii).
January 2015, Director Jacqueline Holloway of the Department
of Business License for Clark County (“Director
Holloway”) sent Plaintiff letters (the “January
Letters”) stating that nineteen of Plaintiff's
tavern locations were grandfathered in under the 2014
Ordinance. (See Ex. B-13 to Am. Compl., ECF No. 63).
Then in February 2015, Director Holloway sent Plaintiff a
letter (the “February Letter”) that confirmed
exempted locations that were grandfathered taverns under the
terms of the 2014 Ordinance. (See Ex. B to Am.
Compl.). The February Letter reflected Director
Holloway's interpretation that, like the 2011 Ordinance,
exemption under the 2014 Ordinance depended on the date the
tavern location first received a gaming license.
(Id.). Plaintiff complied with retrofitting the
taverns that were not considered grandfathered according to
the February Letter. (Am. Compl. ¶¶ 47).
October 28, 2015, Plaintiff received an additional letter
from Director Holloway (the “October Letter”)
(collectively the “letters”) stating that
“previous notifications concerning the grandfathered
status of [Plaintiff's] taverns . . . must be
revised.” (See Ex. B to Am. Compl.). Director
Holloway revised her interpretation and concluded that the
application date of “current ownership, ” rather
than tavern location, determined grandfathered status.
(Id.). Pursuant to this, “the majority of
[Plaintiff's] locations lost their grandfathering status
as of the date of [Director] Holloway's October 28, 2015
letter.” (Pl.'s MSJ 11:12-14).
than complying with the 2014 Ordinance, Plaintiff filed the
instant case seeking a petition for writ of mandamus and
judicial review, and alleging violations of due process and
§ 1983. (See generally Am. Compl.).
Additionally, Plaintiff alleges that the County has
“arbitrarily and capriciously denied [Plaintiff's]
locations the package liquor licenses it regularly grants
other taverns” pursuant to Code § 8.20.020.250.
(Am. Compl. 18:7-8). Plaintiff alleges this claim under its
petition for writ of mandamus, judicial review, and due
process causes of action. (Am. Compl. at 19-25).
February 10, 2016, Plaintiff filed a Motion for Preliminary
Injunction, (ECF No. 6), which the Court later denied, (ECF
No. 27). The County filed its opposition to Plaintiff's
Motion for Preliminary Injunction and included in its
opposition a Motion to Dismiss Plaintiff's claims related
to the 2014 Ordinance. (See generally Mot. to
Dismiss (“MTD”), ECF No. 14). On March 23, 2017,
the Court granted the County's Motion to Dismiss and
granted Plaintiff leave to amend, (ECF No. 58). Plaintiff
filed its Amended Complaint, (ECF No. 60), on April 13, 2017,
and the County filed the instant Motion for Summary Judgment,
(ECF No. 67), on May 12, 2017. On May 15, 2017, Plaintiff
filed the instant Motion for Partial Summary Judgment, (ECF
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A
principal purpose of summary judgment is “to isolate
and dispose of factually unsupported claims.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted). In contrast, when the
nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways:
(1) by presenting evidence to negate an essential element of
the nonmoving party's case; or (2) by demonstrating that
the nonmoving party failed to make a showing sufficient to
establish an element essential to that party's case on
which that party will bear the burden of proof at trial.
See Celotex Corp., 477 U.S. at 323- 24. If the
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
See Celotex Corp., 477 U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth but to determine whether
there is a genuine issue for trial. See Anderson,
477 U.S. at 249. The evidence of the nonmovant is “to
be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255. But if the evidence
of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
See Id. at 249-50.